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is an interim without prejuduice access order really without prejudice?

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  • #1
    Time is a key element to establishing "status quo". Often, intern motions, become "final" because both parties are happy with them and never change anything. That is the result of both parties not moving on the matter.

    No doubt you have read Izyuk and Justice Pazaratz's groundbreaking statements regarding the elusive "status quo".

    Ultimately, it just means that you are awaiting trial on the issues... If they are still issues. The other party will now try to play the delay game to enshrine the order into the "status quo".

    Watch for a pattern of ignorance to your requests and delays on everything. This is common when a party is happy with the current order and is trying to establish a "status quo".

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    • #2
      how without prejudice is the interim access agreement really?
      An interim, without prejudice access agreement allows the parties to go to a motion to have the interim schedule set. They have settled access on an interim, interim basis without compromising their positions for the motion.

      At trial, it will not matter whether there is an interim access order (without prejudice or not). The status quo is what will matter. If it happens to be reduced to an interim order then that clarifies things for everyone going in.

      As Tayken noted above, the status quo is important.

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      • #3
        For example, when a parent removes a child without consent or a court order and the other parent doesn't act on anything for >6 months... A court will often take the position that the other parent acquiesced and will enshrine the current situation as the status quo.

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        • #4
          have I in any way made it harder for myself to get further access by agreeing to this new interim without prejudice status quo ?
          Legally: No. If you have an interim, interim agreement then you can still bring a motion for interim access, followed by having a trial to decide final access.

          There may be a disincentive to bringing that motion (if you are "close" to good enough, the costs can be prohibitive), or you may have difficulty in negotiations (if you are at the OCL's recommendation then the other side may hunker down to delay until you accept it). But the flip side is, if their position is access should remain as it is then there isn't anything to lose by pushing for more, other than costs.

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          • #5
            Originally posted by OrleansLawyer View Post
            But the flip side is, if their position is access should remain as it is then there isn't anything to lose by pushing for more, other than costs.
            Just "push" don't "shove". You can lose a lot when you "shove" versus "push" for more. How you do something really matters. If you go in all guns blazing then you could lose more.

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